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Arthur Loh Kok Cheong And Another v Appeal Board Under The Smoking (Public Health) Ordinance And Another

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date08 October 2008
Year2008
Citation[2009] 1 HKLRD 249
Judgement NumberHCAL16/2008
Subject MatterConstitutional and Administrative Law Proceedings
CourtHigh Court (Hong Kong)
HCAL000016/2008 ARTHUR LOH KOK CHEONG AND ANOTHER v. APPEAL BOARD UNDER THE SMOKING (PUBLIC HEALTH) ORDINANCE AND ANOTHER

HCAL 16/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 16 OF 2008

____________

IN THE MATTER of a decision by the Director of Health (Tobacco Control Office )(the “1st Decision”) to remove the name and address of the Applicants’ bar from the List of Qualified Establishments under Schedule 6 of the Ordinance; and a decision by the Appeal Board under Section 15(2) of Part 2 of Schedule 6 of the Smoking (Public Health) Ordinance to confirm the 1st Decision
and
IN THE MATTER of the Smoking (Public Health) Ordinance (Cap 371)
and
IN THE MATTER of Sections 21K, 21L High Court Ordinance Cap 4 and Order 53 RHC ex-partes on Notice

____________

BETWEEN

ARTHUR LOH KOK CHEONG 1st Applicant
MARK EAST ENTERPRISE LIMITED 2nd Applicant
and
APPEAL BOARD UNDER THE SMOKING
(PUBLIC HEALTH) ORDINANCE		 Respondent
DIRECTOR OF HEALTH Interested Party

____________

AND BETWEEN

HCAL 58/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 58 OF 2008

____________

IN THE MATTER of a decision by the Director of Health (Tobacco Control Office )(the “1st Decision”) to remove the name and address of the Applicants’ bar from the List of Qualified Establishments under Schedule 6 of the Ordinance; and a decision by the Appeal Board under Section 15(2) of Part 2 of Schedule 6 of the Smoking (Public Health) Ordinance to confirm the 1st Decision
and
IN THE MATTER of the Smoking (Public Health) Ordinance (Cap 371)
and
IN THE MATTER of Sections 21K, 21L High Court Ordinance Cap 4 and Order 53 RHC ex-partes on Notice

____________

BETWEEN

TAI PUI MAN 1st Applicant
BULL AND BEAR LIMITED 2nd Applicant
and
APPEAL BOARD UNDER THE SMOKING
(PUBLIC HEALTH) ORDINANCE		 1st Respondent
DIRECTOR OF HEALTH 2nd Respondent

____________

AND BETWEEN

HCAL 66/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 66 OF 2008

____________

IN THE MATTER of a decision by the Director (Tobacco Control Office )(the “1st Decision”) to remove the name and address of the Applicants’ bar from the List of Qualified Establishments under Schedule 6 of the Ordinance; and a decision by the Appeal Board under Section 15(2) of Part 2 of Schedule 6 of the Smoking (Public Health Ordinance) to confirm the 1st Decision
and
IN THE MATTER of the Smoking (Public Health) Ordinance (Cap 371)
and
IN THE MATTER of Sections 21K, 21L High Court Ordinance Cap 4 and Order 53 RHC ex-partes

____________

BETWEEN

CASTRO ANALIZA SAGUINSIN 1st Applicant
ENTERTAIN COMPANY LIMITED 2nd Applicant
and
APPEAL BOARD UNDER THE SMOKING
(PUBLIC HEALTH) ORDINANCE		 1st Respondent
DIRECTOR OF HEALTH 2nd Respondent

____________

(Heard together)

Before: Hon Reyes J in Court

Date of Hearing: 3 October 2008

Date of Judgment: 8 October 2008

______________

J U D G M E N T

______________

I. Introduction

1. In 2006 the Smoking (Public Health) Ordinance (Cap. 371) was amended to ban smoking in public, including in restaurants. But the Ordinance exempted “Qualified Establishments” from the operation of the ban until 1 July 2009. One such type of “Qualified Establishment” is a “Qualified Bar”.

2. In these proceedings, in effect, the central issue is whether the 3 establishments (respectively known as “Biztro”, “Bull and Bear” and “Sticky Fingers”) which are the subject matters of these consolidated proceedings are “Qualified Bars” within the meaning of the Ordinance.

3. Each of the 3 establishments had previously been included in the Director of Health’s List of Qualified Establishments as “Qualified Bars”. Following inspections, the Director determined that none of the establishments satisfied the statutory criteria of a “Qualified Bar”. The Director therefore removed them from the List.

4. Each of the 3 establishments then appealed to an Appeal Board set up under the Ordinance. In each case, the Appeal Board confirmed the Director’s decision (in Biztro’s case, by a majority).

5. The 3 establishments now seek judicial review of the Appeal Board’s decisions in their respective cases. Their case is essentially that the Appeal Board misconstrued (and so misapplied) the statutory criteria for a “Qualified Bar”.

6. The difficulty in the application of the Ordinance arises because each of the establishments sell and serve both alcoholic drinks and meals. But there was evidence that in the case of each establishment the monthly ratio of sales of intoxicating liquors to meals (whether considered in terms of cash or by volume) was significantly in favour of intoxicating liquors.

7. Thus, for example, in the case of Bull and Bear, there was evidence that over a given period sales of meals was only 10.8% in cash terms (6.7% in volume terms) of overall sales of food and liquor. Evidence to like effect was adduced before the Appeal Board in relation to Biztro and Sticky Fingers.

8. Accordingly, the establishments contend that, by any commonsense yardstick, they are “bars” being “mainly used for the sale and consumption of liquor”. The establishments emphatically deny that they are “primarily engaged in the sale and supply of meals”. That the Appeal Board concluded otherwise (the establishments say) must mean that its decisions were irrational.

II. Background

9. A “Qualified Bar” is defined in Sched. 6, s. 4(1) of the Ordinance as follows:

“(1) For the purposes of this Part, an establishment is a qualified bar if all the following requirements are complied with:-

(a) the establishment is a bar as defined in section 2 of this Ordinance;

(b) the establishment is permanently and completely partitioned off from any other establishment;

(c) either:-

(i) a liquor licence specifying the bar and no other premises as the licensed premises is in force in respect of the establishment;

....

(d) no displayed name of the establishment contains ‘酒 家’, ‘酒樓’, ‘餐廳’, ‘卡拉 OK’, ‘網吧’, ‘restaurant’, ‘café’, ‘karaoke’, ‘internet’ or similar expressions; and

(e) the establishment is not engaged primarily in the sale or supply of meals.”

10. Section 2 of the Ordinance defines a bar to mean:

“Any place that is exclusively or mainly used for the sale and consumption of intoxicating liquor as defined in section 53(1) of the Dutiable Commodities Ordinance (Cap.109) [DCO].”

11. Intoxicating liquors are defined in DCO s. 53(1) as spirits, liqueurs, wines, beer and all other liquors fit and intended for use as a beverage. Liquor is defined as any liquid which contains more than 1.2% of ethyl alcohol by volume.

12. There is no dispute that the 3 establishments meet the conditions in ss. 4(1)(b)-(d) of Sched. 6 of the Ordinance. The dispute is instead over the requirements in ss. 4(1)(a) and (e) of Schedule 6.

13. The question is whether the 3 establishments are “Qualified Bars” within the Ordinance insofar as they:

(1) are “exclusively or mainly used for the sale and consumption of intoxicating liquor”; and,

(2) are “not engaged primarily in the sale or supply of meals”.

14. Biztro holds a general restaurant licence and a liquor licence.

15. It has a bar area. But it also includes some 14 tables. At the time of inspection, the tables appeared to be set for lunch dining purposes.

16. Biztro is open from 12.00 to 22.30 on Mondays to Saturdays and 13.00 to 21.00 on Sundays and holidays. Its promotional material reads:

“Stylish and contemporary, Biztro evokes the flavours and aromas of Mediterranean cooking, from roast chicken in a heady paprika, lemon and rosemary marinade to pungent seafood stew spiked with saffron, and Spanish paella from its birthplace, Valencia.

Apart from being a lovely venue for a quiet lunch and dinner, Biztro also serves delicious coffees and freshly baked pastries for afternoon tea. And as the sun sets, Biztro captures the perfect ambience in which to enjoy dinner accompanied by delightful live music.”

17. In the case of Biztro, the Appeal Board’s Reasons were expressed as follows:

“Members of the Board have different views. One member was of the view that if a bar has branched out to becoming a restaurant, even only during certain period of its operating hours, it would be enjoying an undue privilege in comparison to other restaurants that are not exempted from the smoking ban. By way of comparison, if a restaurant operate as a bona fide bar for a certain period during its operating time, it could not enjoy the benefit of a deferred smoking ban. Another member of the Board agreed and further opined that Biztro did intend to and in fact operate another type of business during lunch hours, the provision of a wide variety of food throughout the day was a manifestation that this bar was basically operating as a restaurant during certain periods of the day.

The remaining member of the Board was of the view that the Director should have considered whether the establishment had met the specified requirements in a holistic manner, including the mode of operation of the establishment in other periods of the day. On the basis of the information presented before the Board by both sides, this member was satisfied that as a whole Biztro was not engaged primarily in the sale or supply of food.”

18. Bull and Bear holds a general restaurant licence and a liquor...

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